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Lord Rooker: It could do, but the end of the subsection relates to,
- "the discharge of their functions by the chief officers".
- "promoting the efficiency and effectiveness".
I have probably misled the noble Lord, Lord Elton. There is non-statutory guidance. There is a process already for manuals and guidance, but the Bill requires the chief officer to have regard to the codes. It is part of the reform process and noble Lords have recognised that there is a stronger obligation than is attached to non-statutory guidance and manuals. There is no question that there is a stronger obligation here. I do not argue that what we propose in this clause is exactly the same as what has gone before. However, I believe that the appointment of the new board and the role that it will play in ensuring that the codes are drafted is best for ensuring our protection.
I also point out to the Committee—I do not hide behind this, but it is not an unimportant point—that the Select Committee on Delegated Powers and Regulatory Reform did not make any comment on this part of the Bill. I have warned my elders and betters in the other place that the writ of that committee is important in this Chamber. Indeed, we have already tabled amendments in relation to advice given by that committee, but it makes no comment on this part of the Bill.
Lord Mayhew of Twysden: I ask the Minister to reconsider the thrust of his reply. Can he explain why some of these matters are too sensitive to be capable of being laid before Parliament? Why does that not apply to the codes of practice and the provisions of Section 39A to which the noble Lord, Lord Phillips, has drawn attention? That is widely expressed. It says that the Secretary of State shall issue a code of practice about the exercise and performance by chief officers of police of their powers and duties under this chapter. At the moment the Government appear to be saying that because in some conceivable circumstances some of
these matters may be sensitive, therefore, none of the codes shall be brought before Parliament for specific approval. The Minister may want to reconsider that.
Lord Rooker: The debates do not end with the Committee stage. I cannot give any commitments in relation to this matter. We have listened to what has been said. I accept the point that the codes of practice will be technical documents, covering complex areas of operational policing. I cannot hide behind that, because clearly some of them may be important. In no way, shape or form would any reasonable person argue that that needed to be kept out of the public domain. As I do not have a list of the potential areas of codes of practice, I am unable to elucidate further.
One fair point that was raised is that the codes of practice of the police authorities cannot be equated to the codes of practice of chief constables. I did not make that clear, but I know that one noble Lord raised that point. The police authorities are not involved in operational policing. They deal with the financial management. The police authorities do not deal with operationally sensitive matters. That is where I would draw the line. Following the comments of noble Lords, and without any commitment, I am happy to have this matter looked at again.
Lord Dholakia: Before the Minister sits down, I was just looking at the paper from the Select Committee on Delegated Powers. It says that the power is likely to be used in areas of operational policing where specific concerns arise. The Minister said during Second Reading that the Secretary of State had no intention of using any powers to affect operational matters. So this directly contradicts what was said during Second Reading.
Can the Minister say precisely what the code of practice is about? Is it about operational matters? If so, we must go back to the drawing board. If not, we need a better explanation.
Lord Renton: In considering this matter further, it may help the Minister to bear in mind that, though many years ago codes of practice were considered never to be part of the law, in more modern times they have become part of the law without actually being secondary legislation. They become part of the law because a breach of the provisions contained in them can give rise to legal action. It is only fair therefore to those who may perhaps be placed in a vulnerable position if such a breach occurs, that codes of practice be given as much prominence as possible.
Admittedly, if it were secondary legislation it would have to be laid before Parliament. But in view of the legal implications and the interest which Parliament has a right to take in these matters, it would surely be much more sensible and fair to lay the codes of practice before Parliament.
Lord Rooker: I take the point about the history of codes of practice made by the noble Lord, Lord Renton. It has been self-evident over the past two or three decades that in a whole range of activities codes
of practice have taken on greater importance simply because of the court cases that have arisen around them.I cannot respond to the point made by the noble Lord, Lord Dholakia. For some reason I do not have the Delegated Powers Committee paper in my Box—I thought I kept everything. But I make it clear that this is not interference with the operational activities and responsibilities of chief officers. The two matters are not related and I do not see a contradiction. However, given the nature of the debate I am happy to have a look at this issue again just so we can get clarity. But I make that point without any commitment.
Lord Dixon-Smith: We are now in some difficulty. My noble and learned friend Lord Mayhew of Twysden raised a fundamental point when he raised the issue of the need to protect the operational integrity of our police forces. The Minister clearly indicated that from time to time codes of practice, under this section, may well be codes of practice which relate to operational matters. A clear problem arises when those two statements are looked at in simple opposition. I found the Minister's response disappointing when he came to explain that already some codes of practice on the operational front are not in the public domain. Under this amendment, codes of practice properly should be in the public domain.
I do not have a great deal of difficulty with the procedure with which the police agree; that is, voluntary codes of practice on operational matters which are not in the public domain. It would be wholly remarkable if that situation did not exist. But that is not what the Bill says. I accept too that it is necessary to make a distinction between codes of practice for police authorities and codes of practice for chief constables or the commissioner as the case may be. There is a distinction between the matters which may be dealt with by one group on the one hand, and the matters which may be dealt with by another group on the other.
The Minister however said just enough to persuade me that we should not divide on this amendment at this stage. I am grateful to him for that. It is vitally important for Parliament to be sure that the operational integrity of the police force can be maintained.
Lord Waddington: I do not want to protract the debate. Could my noble friend add to the matters he raised for consideration by the Minister the whole question as to whether codes of practice are the right vehicle by which the Secretary of State should give advice to police officers on sensitive issues? He has said that that is the difficulty for him. But one wonders whether sensitive matters should be included in codes of practice or whether there should be some other vehicle by which that advice or instruction should be given. That is the real point.
Lord Dixon-Smith: My noble friend raises another aspect of what is a very difficult matter. But we have had a useful debate.
Lord Rooker: Before the noble Lord withdraws his amendment, for which I shall be grateful because it will stop me from rising again. If the codes of practice existed in isolation, the point of the noble Lord, Lord Waddington, would be a fair one. But I draw the attention of Members of the Committee to the long letter I wrote to them recently and in particular to one sentence in paragraph 8:
- "The white paper set out a three-tiered approach; regulations, binding in law; codes of practice, to which chief officers must have regard, but which are open to variation for good reasons; and guidance which is purely advisory (much of which will continue to be non-statutory)".
In other words, the codes of practice are not the be all and end all; they are not the only vehicle.
Lord Dixon-Smith: Unfortunately I have too much experience of codes of practice in another area. I certainly recall 150 pages of one code of practice which was a statutory code of practice with which local authorities had to comply. The administrative cost of that to each and every authority was horrendous. Any of my local authority colleagues who are present today will remember the specimen to which I refer.
However, the Minister has said just enough to persuade me not to divide on this matter. I shall study his response with great care. I shall study with even more care the response he makes when we reach the next stage of the Bill. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2 shall stand part of the Bill?
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